Coeur Alaska, Inc v. Southeast Alaska Conservation Council et al

49 Pages·2009·0.28 MB·English

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COEUR ALASKA, INC. v. SOUTHEAST ALASKA

CONSERVATION COUNCIL ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 07–984. Argued January 12, 2009—Decided June 22, 2009*
In reviving a closed Alaska gold mine using a “froth flotation” tech-
nique, petitioner Coeur Alaska, Inc., plans to dispose of the resulting
waste material, a rock and water mixture called “slurry,” by pumping
it into a nearby lake and then discharging purified lake water into a
downstream creek. The Clean Water Act (CWA), inter alia, classifies
crushed rock as a “pollutant,” §352(6); forbids its discharge “[e]xcept
as in compliance” with the Act, §301(a); empowers the Army Corps of
Engineers (Corps) to “issue permits . . . for the discharge of . . . fill
material,” §404(a); and authorizes the Environmental Protection
Agency (EPA) to “issue a permit for the discharge of any pollutant,”
“[e]xcept as provided in [§404],” §402(a). The Corps and the EPA to-
gether define “fill material” as any “material [that] has the effect of
. . . [c]hanging the bottom elevation” of water, including “slurry . . . or
similar mining-related materials.” 40 CFR §232.2. Coeur Alaska ob-
tained a §404 permit for the slurry discharge from the Corps and a
§402 permit for the lake water discharge from the EPA.
Respondent environmental groups (collectively, SEACC) sued the
Corps and several of its officials under the Administrative Procedure
Act, arguing that the CWA §404 permit was not “in accordance with
law,” 5 U. S. C. §706(2)(A), because (1) Coeur Alaska should have
sought a CWA §402 permit from the EPA instead, just as it did for
the lake water discharge; and (2) the slurry discharge would violate
the “new source performance standard” the EPA had promulgated
under CWA §306(b), forbidding froth-flotation gold mines to dis-
——————
*Together with No. 07–990, Alaska v. Southeast Alaska Conservation
Council et al., also on certiorari to the same court.
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CONSERVATION COUNCIL

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charge “process wastewater,” which includes solid wastes, 40 CFR
§440.104(b)(1). Coeur Alaska and petitioner Alaska intervened as de-
fendants. The District Court granted the defendants summary
judgment, but the Ninth Circuit reversed, holding that the proposed
slurry discharge would violate the EPA’s performance standard and
§306(e).
Held:
1. The Corps, not the EPA, has authority to permit the slurry dis-
charge. Pp. 9–13.
(a) By specifying that, “[e]xcept as provided in . . . [§404,]” the
EPA “may . . . issue permit[s] for the discharge of any pollutant,”
§402(a) forbids the EPA to issue permits for fill materials falling un-
der the Corps’ §404 authority. Even if there were ambiguity on this
point, it would be resolved by the EPA’s own regulation providing
that “[d]ischarges of . . . fill material . . . which are regulated under
section 404” “do not require [EPA §402] permits.” 40 CFR §122.3.
The agencies have interpreted this regulation to essentially restate
§402’s text, ibid., and the EPA has confirmed that reading before this
Court. Because it is not “plainly erroneous or inconsistent with the
regulation,” the Court accepts the EPA’s interpretation as correct.
Auer v. Robbins, 519 U. S. 452, 461. Thus, the question whether the
EPA is the proper agency to regulate the slurry discharge depends on
whether the Corps has authority to do so. If so, the EPA may not
regulate. Pp. 9–11.
(b) Because §404(a) empowers the Corps to “issue permits . . . for
the discharge of . . . fill material,” and the agencies’ joint regulation
defines “fill material” to include “slurry . . . or similar mining-related
materials” having the “effect of . . . [c]hanging the bottom elevation”
of water, 40 CFR §232.2, the slurry Coeur Alaska wishes to discharge
into the lake falls well within the Corps’ §404 permitting authority,
rather than the EPA’s §402 authority. The CWA gives no indication
that Congress intended to burden industry with the confusing divi-
sion of permitting authority that SEACC’s contrary reading would
create. Pp. 11–13.
2. The Corps acted in accordance with law in issuing the slurry dis-
charge permit to Coeur Alaska. Pp. 13–28.
(a) The CWA alone does not resolve these cases. Pp. 14–18.
(i) SEACC contends that because the EPA’s performance stan-
dard forbids even minute solid waste discharges, 40 CFR
§440.104(b)(1), it also forbids Coeur Alaska’s slurry discharge, 30% of
which is solid waste, into the lake. Thus, says SEACC, the slurry
discharge is “unlawful” under CWA §306(e), which prohibits “any
owner . . . of any new source to operate such source in violation of any
standard of performance applicable to such source.” Pp. 14–16.
Cite as: 557 U. S. ____ (2009) 3
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(ii) Petitioners and the federal agencies counter that CWA
§404 grants the Corps authority to determine whether to issue a
permit allowing the slurry discharge without regard to the EPA’s
new source performance standard or §306(e)’s prohibition. Pp. 16–18.
(iii) The CWA is ambiguous on the question whether §306 ap-
plies to discharges of fill material regulated under §404. On the one
hand, §306 provides that a discharge that violates an EPA new
source performance standard is “unlawful”—without an exception for
fill material. On the other hand, §404 grants the Corps blanket au-
thority to permit the discharge of fill material—without mentioning
§306. This tension indicates that Congress has not “directly spoken”
to the “precise question” at issue. Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 842. P. 18.
(b) Although the agencies’ regulations construing the CWA are
entitled to deference if they resolve the statutory ambiguity in a rea-
sonable manner, see Chevron, supra, at 842, the regulations bearing
on §§306 and 404, like the CWA itself, do not do so. For example,
each of the two principal regulations seems to stand on its own with-
out reference to the other. The EPA’s performance standard contains
no exception for fill material, and it forbids any discharge of “process
wastewater,” including solid wastes. 40 CFR §440.104(b)(1). The
agencies’ joint regulation defining fill material includes “slurry or . . .
similar mining-related materials,” §232.2, but contains no exception
for slurry regulated by an EPA performance standard. Additional
regulations noted by the parties offer no basis for reconciliation.
Pp. 18–20.
(c) In light of the ambiguities in the CWA and the pertinent regu-
lations, the Court turns to the agencies’ subsequent interpretation of
those regulations. Auer, supra, at 461. The question at issue is ad-
dressed and resolved in a reasonable and coherent way by the two
agencies’ practice and policy, as recited in the EPA’s internal “Regas
Memorandum” (Memorandum), which explains that the performance
standard applies only to the discharge of water from the lake into the
downstream creek, and not to the initial discharge of slurry into the
lake. Though the Memorandum is not subject to sufficiently formal
procedures to merit full Chevron deference, the Court defers to it be-
cause it is not “plainly erroneous or inconsistent with the regula-
tion[s],” Auer, supra, at 461. Five factors inform that conclusion: The
Memorandum (1) confines its own scope to closed bodies of water like
the lake here, thereby preserving a role for the performance stan-
dards; (2) guards against the possibility of evasion of those standards;
(3) employs the Corps’ expertise in evaluating the effects of fill mate-
rial on the aquatic environment; (4) does not allow toxic compounds
to be discharged into navigable waters; and (5) reconciles §§306, 402,
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and 404, and the regulations implementing them, better than any of
the parties’ alternatives. The Court agrees with the parties that a
two-permit regime is contrary to the statute and regulations. Pp. 20–
23.
(d) The Court rejects SEACC’s contention that the Regas Memo-
randum is not entitled to deference because it contradicts the agen-
cies’ published statements and prior practice. Though SEACC cites
three such statements, its arguments are not convincing. Pp. 23–28.
(i) Although a 1986 memorandum of agreement (MOA) be-
tween the EPA and the Corps seeking to reconcile their then-differing
“fill material” definitions suggests, as SEACC asserts, that §402 will
“normally” apply to discharges of “suspended”—i.e., solid—pollutants,
that statement is not contrary to the Regas Memorandum, which ac-
knowledges that the EPA retains authority under §402 to regulate
the discharge of suspended solids from the lake into downstream wa-
ters. The MOA does not address the question presented by these
cases, and answered by the Regas Memorandum, and is, in fact, con-
sistent with the agencies’ determination that the Corps regulates all
discharges of fill material and that §306 does not apply to these dis-
charges. Pp. 23–25.
(ii) Despite SEACC’s assertion that the fill regulation’s pream-
ble demonstrates that the fill rule was not intended to displace the
pre-existing froth-flotation gold mine performance standard, the pre-
amble is consistent with the Regas Memorandum when it explicitly
notes that the EPA has “never sought to regulate fill material under
effluent guidelines,” 67 Fed. Reg. 31135. If a discharge does not qual-
ify as fill, the EPA’s new source performance standard applies. If the
discharge qualifies as fill, the performance standard does not apply;
and there was no earlier agency practice or policy to the contrary.
Pp. 25–26.
(iii) Remarks made by the two agencies in promulgating the fill
regulation, which pledge that the EPA’s “previou[s] . . . determina-
tion[s]” with regard to the application of performance standards “re-
main vali[d],” are not conclusive of the question at issue. The Regas
Memorandum has followed this policy by applying the performance
standard to the discharge of water from the lake into the creek. The
remarks do not state that the EPA will apply such standards to dis-
charges of fill material. Pp. 26–27.
(iv) While SEACC cites no instance in which the EPA has ap-
plied a performance standard to a discharge of fill material, Coeur
Alaska cites two instances in which the Corps issued a §404 permit
authorizing a mine to discharge solid waste as fill material. These
permits illustrate that the agencies did not have a prior practice of
applying EPA performance standards to discharges of mining wastes
Cite as: 557 U. S. ____ (2009) 5
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that qualify as fill material. Pp. 27–28.
486 F. 3d 638, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, and ALITO, JJ., joined, and in which SCALIA,
J., joined in part. BREYER, J., filed a concurring opinion. SCALIA, J.,
filed an opinion concurring in part and concurring in the judgment.
GINSBURG, J., filed a dissenting opinion, in which STEVENS and SOUTER,
JJ., joined.
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–984 and 07–990
_________________
COEUR ALASKA, INC., PETITIONER
07–984 v.
SOUTHEAST ALASKA CONSERVATION COUNCIL
ET AL.
ALASKA, PETITIONER
07–990 v.
SOUTHEAST ALASKA CONSERVATION COUNCIL
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 22, 2009]
JUSTICE KENNEDY delivered the opinion of the Court.
These cases require us to address two questions under
the Clean Water Act (CWA or Act). The first is whether
the Act gives authority to the United States Army Corps of
Engineers, or instead to the Environmental Protection
Agency (EPA), to issue a permit for the discharge of min-
ing waste, called slurry. The Corps of Engineers has
issued a permit to petitioner Coeur Alaska, Inc. (Coeur
Alaska), for a discharge of slurry into a lake in Southeast
Alaska. The second question is whether, when the Corps
issued that permit, the agency acted in accordance with
law. We conclude that the Corps was the appropriate
agency to issue the permit and that the permit is lawful.
With regard to the first question, §404(a) of the CWA
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Opinion of the Court

grants the Corps the power to “issue permits . . . for the
discharge of . . . fill material.” 86 Stat. 884; 33 U. S. C.
§1344(a). But the EPA also has authority to issue permits
for the discharge of pollutants. Section 402 of the Act
grants the EPA authority to “issue a permit for the dis-
charge of any pollutant” “[e]xcept as provided in” §404. 33
U. S. C. §1342(a). We conclude that because the slurry
Coeur Alaska wishes to discharge is defined by regulation
as “fill material,” 40 CFR §232.2 (2008), Coeur Alaska
properly obtained its permit from the Corps of Engineers,
under §404, rather than from the EPA, under §402.
The second question is whether the Corps permit is
lawful. Three environmental groups, respondents here,
sued the Corps under the Administrative Procedure Act,
arguing that the issuance of the permit by the Corps was
“not in accordance with law.” 5 U. S. C. §706(2)(A). The
environmental groups are Southeast Alaska Conservation
Council, Sierra Club, and Lynn Canal Conservation (col-
lectively, SEACC). The State of Alaska and Coeur Alaska
are petitioners here.
SEACC argues that the permit from the Corps is unlaw-
ful because the discharge of slurry would violate an EPA
regulation promulgated under §306(b) of the CWA, 33
U. S. C. §1316(b). The EPA regulation, which is called a
“new source performance standard,” forbids mines like
Coeur Alaska’s from discharging “process wastewater” into
the navigable waters. 40 CFR §440.104(b)(1). Coeur
Alaska, the State of Alaska, and the federal agencies
maintain that the Corps permit is lawful nonetheless
because the EPA’s performance standard does not apply to
discharges of fill material.
Reversing the judgment of the District Court, the Court
of Appeals held that the EPA’s performance standard
applies to this discharge so that the permit from the Corps
is unlawful.
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
I

A

Petitioner Coeur Alaska plans to reopen the Kensington
Gold Mine, located some 45 miles north of Juneau, Alaska.
The mine has been closed since 1928, but Coeur Alaska
seeks to make it profitable once more by using a technique
known as “froth flotation.” Coeur Alaska will churn the
mine’s crushed rock in tanks of frothing water. Chemicals
in the water will cause gold-bearing minerals to float to
the surface, where they will be skimmed off.
At issue is Coeur Alaska’s plan to dispose of the mixture
of crushed rock and water left behind in the tanks. This
mixture is called slurry. Some 30 percent of the slurry’s
volume is crushed rock, resembling wet sand, which is
called tailings. The rest is water.
The standard way to dispose of slurry is to pump it into
a tailings pond. The slurry separates in the pond. Solid
tailings sink to the bottom, and water on the surface
returns to the mine to be used again.
Rather than build a tailings pond, Coeur Alaska pro-
poses to use Lower Slate Lake, located some three miles
from the mine in the Tongass National Forest. This lake
is small—800 feet at its widest crossing, 2,000 feet at its
longest, and 23 acres in area. See App. 138a, 212a.
Though small, the lake is 51 feet deep at its maximum.
The parties agree the lake is a navigable water of the
United States and so is subject to the CWA. They also
agree there can be no discharge into the lake except as the
CWA and any lawful permit allow.
Over the life of the mine, Coeur Alaska intends to put
4.5 million tons of tailings in the lake. This will raise the
lakebed 50 feet—to what is now the lake’s surface—and
will increase the lake’s area from 23 to about 60 acres. Id.,
at 361a (62 acres), 212a (56 acres). To contain this wider,
shallower body of water, Coeur Alaska will dam the lake’s
downstream shore. The transformed lake will be isolated
4 COEUR ALASKA, INC. v. SOUTHEAST ALASKA
CONSERVATION COUNCIL
Opinion of the Court
from other surface water. Creeks and stormwater runoff
will detour around it. Id., at 298a. Ultimately, lakewater
will be cleaned by purification systems and will flow from
the lake to a stream and thence onward. Id., at 309a–
312a.
B
Numerous state and federal agencies reviewed and
approved Coeur Alaska’s plans. At issue here are actions
by two of those agencies: the Corps of Engineers and the
EPA.
1
The CWA classifies crushed rock as a “pollutant.” 33
U. S. C. §1362(6). On the one hand, the Act forbids Coeur
Alaska’s discharge of crushed rock “[e]xcept as in compli-
ance” with the Act. CWA §301(a), 33 U. S. C. §1311(a).
Section 404(a) of the CWA, on the other hand, empowers
the Corps to authorize the discharge of “dredged or fill
material.” 33 U. S. C. §1344(a). The Corps and the EPA
have together defined “fill material” to mean any “mate-
rial [that] has the effect of . . . [c]hanging the bottom ele-
vation” of water. 40 CFR §232.2. The agencies have
further defined the “discharge of fill material” to include
“placement of . . . slurry, or tailings or similar mining-
related materials.” Ibid.
In these cases the Corps and the EPA agree that the
slurry meets their regulatory definition of “fill material.”
On that premise the Corps evaluated the mine’s plan for a
§404 permit. After considering the environmental factors
required by §404(b), the Corp issued Coeur Alaska a per-
mit to pump the slurry into Lower Slate Lake. App. 340a–
378a.
In granting the permit the Corps followed the steps set
forth by §404. Section 404(b) requires the Corps to con-
sider the environmental consequences of every discharge it
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
allows. 33 U. S. C. §1344(b). The Corps must apply guide-
lines written by the EPA pursuant to §404(b). See ibid.;
40 CFR pt. 230 (EPA guidelines). Applying those guide-
lines here, the Corps determined that Coeur Alaska’s plan
to use Lower Slate Lake as a tailings pond was the “least
environmentally damaging practicable” way to dispose of
the tailings. App. 366a. To conduct that analysis, the
Corps compared the plan to the proposed alternatives.
The Corps determined that the environmental damage
caused by placing slurry in the lake will be temporary.
And during that temporary disruption, Coeur Alaska will
divert waters around the lake through pipelines built for
this purpose. Id., at 298a. Coeur Alaska will also treat
water flowing from the lake into downstream waters,
pursuant to strict EPA criteria. Ibid.; see Part I–B–2,
infra. Though the slurry will at first destroy the lake’s
small population of common fish, that population may
later be replaced. After mining operations are completed,
Coeur Alaska will help “recla[im]” the lake by “[c]apping”
the tailings with about 4 inches of “native material.” App.
361a; id., at 309a. The Corps concluded that
“[t]he reclamation of the lake will result in more
emergent wetlands/vegetated shallows with moderate
values for fish habitat, nutrient recycling, car-
bon/detrital export and sediment/toxicant retention,
and high values for wildlife habitat.” Id., at 361a.
If the tailings did not go into the lake, they would be
placed on nearby wetlands. The resulting pile would rise
twice as high as the Pentagon and cover three times as
many acres. Reply Brief for Petitioner Coeur Alaska 27.
If it were chosen, that alternative would destroy dozens of
acres of wetlands—a permanent loss. App. 365a–366a.
On the premise that when the mining ends the lake will
be at least as environmentally hospitable, if not more so,
than now, the Corps concluded that placing the tailings in